More Losers In TPP Deal

We know that labor and environmental issues are major victims in the pending TPP deal, but now we learn that the deal is also being rigged to provide a major boon to big psrmaceuticsl companies. Losers: pretty much everyone, including U.S. Patients in need of cutting edge drugs. Politico has the story:

A recent draft of the Trans-Pacific Partnership free-trade deal would give U.S. pharmaceutical firms unprecedented protections against competition from cheaper generic drugs, possibly transcending the patent protections in U.S. law.

POLITICO has obtained a draft copy of TPP’s intellectual property chapter as it stood on May 11, at the start of the latest negotiating round in Guam. While U.S. trade officials would not confirm the authenticity of the document, they downplayed its importance, emphasizing that the terms of the deal are likely to change significantly as the talks enter their final stages. Those terms are still secret, but the public will get to see them once the twelve TPP nations reach a final agreement and President Obama seeks congressional approval.
Still, the draft chapter will provide ammunition for critics who have warned that TPP’s protections for pharmaceutical companies could dump trillions of dollars of additional health care costs on patients, businesses and governments around the Pacific Rim. The highly technical 90-page document, cluttered with objections from other TPP nations, shows that U.S. negotiators have fought aggressively and, at least until Guam, successfully on behalf of Big Pharma.

The response from trade negotiators to being caught with their hands in the cookie jar? The usual.

U.S. officials said the key point to remember about trade deals is that no provision is ever final until the entire deal is final—and that major compromises tend to happen at the very end of the negotiations. They expect the real horse-trading to begin now that Obama has signed “fast-track” legislation requiring Congress to pass or reject TPP without amendments.

“The negotiations on intellectual property are complex and continually evolving,” said Trevor Kincaid, a spokesman for Froman. “On pharmaceutical products, we are working closely with stakeholders, Congress, and partner countries to develop an approach that aims to make affordable life-saving medicine more widely available while creating incentives for the development of new treatments and cures. Striking this important balance is at the heart of our work.”

Who’s upset? Everyone – businesses, other countries, generic drug makers, doctors, even the AARP. The bottom line?

[Rohit] Malpani of Doctors Without Borders said U.S. negotiators have basically functioned as drug lobbyists. The TPP countries have 40 percent of global economic output, and the deal is widely seen as establishing new benchmarks for some of the most complex areas of global business. Malpani fears it could set a precedent that crushes the generic drug industry under a mountain of regulation and litigation.

“We consider this the worst-ever agreement in terms of access to medicine,” he said. “It would create higher drug prices around the world—and in the U.S., too.”

Clearly not going to be one of Barack Obama’s shining moments as a progressive champion.

Trade Fight Over – Pelosi Concedes

Those of you who don’t care about trade can rejoice – this will be the last time I post about the issue, barring some hugely unforeseen circumstances arising. From the National Journal:

June 24, 2015 In a concession that Democrats no longer have a chance to stop President Obama’s trade agenda, House Minority Leader Nancy Pelosi told her caucus Wednesday morning that she will back Trade Adjustment Assistance, a workers’ aid bill that had been blocked by Democrats to hold up the package.

“While we may not all vote in the same manner on TAA, I will support its passage because it can open the door to a full debate on [the Trans-Pacific Partnership],” she said in a letter to House Democrats.

Pelosi’s announcement comes less than two weeks after she helped derail a larger trade package by opposing that bill, and a day after the Senate passed another piece of that package to which many Democrats have strong objections.

House Democrats voted overwhelmingly this month to block TAA because it was linked to Trade Promotion Authority—also known as fast-track—which most in the caucus oppose. In response, GOP leaders separated the bills and asked pro-trade Democrats to trust them that TAA would quickly get a vote once TPA moved through Congress (TAA has traditionally passed with mostly Democratic votes, and most members who opposed it the first time did so as a tactic to block TPA).

Pelosi’s statement is a concession that Republicans’ strategy worked. With TPA passing the House and its Senate passage imminent, its opponents’ only hope was that Obama would keep his pledge not to sign it without TAA. But already the White House has signaled he will give it swift approval, knowing that doing so removes any reason for Democrats to continue opposing TAA.

My favorite Postie Chris Cillizza could hardly contain his Third Way glee, describing the process by which President Obama finally accomplished his goal of getting a legislative accomplishment – any accomplishment – done. He isn’t wrong this time, though.

What came next was a classic bit of power politics with Obama, House Speaker John Boehner and Senate Majority Leader Mitch McConnell pulling the strings. The House GOP decoupled TPA and TAA and passed the trade promotion legislation by itself. That then went to the Senate where, on Tuesday, it got the 60 votes it needed to end debate and force a vote on final passage today — where it is expected to easily be approved. That will then be followed by a vote on TAA, which will also be approved by the Senate, too.

In essence, what Obama and the two congressional leaders did was gamble that if they could get TPA approved separately then there was no way that House Democrats would tank the entire thing by, again, voting against a measure in TAA which they have long supported. That gamble paid off Wednesday when Pelosi acknowledged the obvious — that TPA and TAA would both pass the House.

I’ll close with this – I’ve written so much about trade because it is a perfect example of a disturbing pattern at both the state and federal levels. Democratic Party power brokers are simply all too willing to sell out the interests of a key constituency – labor here – so as to appease the interests of a different constituency – in this case, business – that will never, ever truly be supportive of Democratic Party interests and policies. We have 20 years of evidence that free trade agreements are not only bad for labor but for this country. The only beneficiaries of these agreements have been – and will be again – big business interests who will take jobs from the United States and other high wage countries and spirit them away to wherever they can get the lowest wages and the highest profits. And in the end, they won’t thank the Democrats who were crucial to this law passing – they’ll spend their money funding conservative super PACs and Republican candidates.

At some point, Democrats have to decide where their loyalties lay. Yes, politics is a hardball, full contact sport and sometimes you gotta do what you gotta do, but on some level loyalty has to matter. You wanna know why Democratic voters don’t come out in midterm elections? I’ll tell you – shitty, stupid, counterproductive, delusional deals like this one induce a contempt and a disillusionment in all but the hardest core voters.

I could go on, but you get the idea. There is a huge disconnect between the desires and wishes of the base of the Democratic Party and the cautious, me too policies pursued by too many Democratic elected officials at all levels of government. The base of the party, its most loyal foot solidiers on the left, labor and other groups, is not going to tolerate this kind of repeated betrayal forever. The reckoning is coming, and it may be soon, or it may not come until old cranks like me are gone. But if I don’t accomplish anything else in this sometimes sordid game, pointing out the betrayal and the backstabbing of progressive values by our alleged “champions” at all levels, and helping to begin a real revolution – I can live with that as my epitaph.

Rant over. For now.

Is TPP Unconstitutional?

In its zeal to pass a trade deal with 12 Pacific rim countries, the United States has most likely exceeded the limits of the Constitution, by allowing what are known as “investor-state” claims to be brought, not in U.S. courts, but before a three member arbitration panel. An article in The Atlantic argues persuasively that these provisions will be struck down by federal courts.

Despite the fairness of our court system, the U.S. government has consented in prior trade agreements, and in a leaked version of the still-secret TPP, to allow foreign investors to bypass our courts and instead move to “investor-state” arbitration. Thus, challenges based upon TPP to our duly enacted laws and other regulatory actions would be decided by three individuals who are not government officials and need not be American citizens. And they would have the final word as to whether the federal government will be compelled to pay damages, because there is no judicial review in any U.S. court of the merits of these arbitral rulings.

* * *

Under the TPP, the arbitrators will act like judges, deciding legal questions just as federal judges decide constitutional claims. However, unlike judges appointed under Article III of the Constitution, TPP arbitrators are not appointed by the president or confirmed by the Senate, nor do they have the independence that comes from life tenure. And that presents a significant constitutional issue: Can the president and Congress, consistent with Article III, assign to three private arbitrators the judicial function of deciding the merits of a TPP investor challenge?

The article answers its own question definitively in the negative.

The Supreme Court has not ruled on this precise question. But the collective reasoning in four of its recent rulings bearing on the issue leans heavily toward a finding of unconstitutionality. The Court has placed significant limits on the ability of Congress to assign the power to decide cases traditionally handled by the courts to people other than Article III judges, even when the judicial substitutes are full-time federal officials, such as bankruptcy judges or the heads of federal agencies. Moreover, in each case in which the Court approved of a dispute being taken away from federal judges, there was judicial review at the end of the process, which is not the case with TPP. Moreover, although the Justice Department issued a lengthy opinion in 1995 on when arbitration can be used to replace court adjudication, it did not then, and has not since then, defended the constitutionality of arbitration provisions like those in the proposed TPP.

As it presses for the passage of TPP, the administration needs to explain how the Constitution allows the United States to agree to submit the validity of its federal, state, and local laws to three private arbitrators, with no possibility of review by any U.S. court. Otherwise, it risks securing a trade agreement that won’t survive judicial scrutiny, or, even worse, which will undermine the structural protections that an independent federal judiciary was created to ensure.

It may well be that this trade agreement, now on a path to passage based on an unholy alliance of Republicans and anti-labor Democrats, is more likely to be defeated in the courts than in the Congress.


Eek! It’s Alive!

President Obama’s trade bill has had more lives than a Walking Dead extra. Stymied in the Senate, it came back to life and passed. Smothered by Democratic defections in the House, the bill looked dead again, but it’s been split in two and is now very much alive. The New York Times has the story:

The Senate on Tuesday narrowly voted to end debate on legislation granting President Obama enhanced negotiating powers to complete a major Pacific trade accord, virtually ensuring final passage on Wednesday of Mr. Obama’s top legislative priority in his final years in office.

The procedural decision barely cleared the 60 votes needed — the tally was 60 to 37 — but final passage will need only 51 votes. It was the second time the Senate blocked a filibuster of the so-called trade promotion authority, but this time the bill was shorn of a measure to offer enhanced retraining and education assistance to workers displaced by international trade accords. That measure faces a crucial procedural vote on Wednesday as well.

I have to say three things: first, it’s amazing how dogged the President can be when he sets his mind to actually passing legislation. Two, it’s kind of weird that he’s so determined to pass a bill that 80% of Democratic legislators are opposed to – so much so that he has to rely on GOP leadership to move the legislation. And three, in doing all of this, he’s slapping his party’s base – labor – right upside the head. Looks to me like the first term version of Obama – transformative, seeking to transcend party and all that – is very much still with us. The optics of this from the standpoint of electoral politics and standing by your friends is utterly and completely appalling.
Here’s the 13 “pro-trade” Democratic senators:

Bennet (D-CO)

Cantwell (D-WA)

Carper (D-DE)

Coons (D-DE)

Feinstein (D-CA)

Heitkamp (D-ND)

Kaine (D-VA)

McCaskill (D-MO)

Murray (D-WA)

Nelson (D-FL)

Shaheen (D-NH)

Warner (D-VA)

Wyden (D-OR)

Both Virginia Democratic senators. Both Delaware Democrats.

Some days, it’s just embarrassing to be a Democrat. And I suspect that if labor has the gumption I’m pretty sure it does, there’s some national political aspirants on that list that will never be acceptable to labor. Ever. Tim Kaine, Mark Warner, Claire McCaskill, Jeanne Shaheen, I’m looking right at all of you.

Cardin On Trade

Question: why hasn’t Senator Ben Cardin’s support for trade (both fast track authority and the bill itself) come under more scrutiny in Maryland? He has consistently sided with proponents of the deal, offering amendments and voting for the bill in the Senate Finance Committee, and speaking out about his “scars” from the President’s lobbying efforts. Strangely, despite all his votes for the bill, he voted against cloture – allegedly because he was unhappy about amendments not included as part of the bill – but then proceeded to vote for the bill moments later. That’s the opposite of the usual wishy-washy Senate approach, which is to vote for cloture – the crucial vote – and then against the bill, when it no longer matters much. With the fast track bill on its way back to the Senate, pay close attention to Cardin’s words and actions. They may be critical to the ultimate success – or more hopefully, failure – of the President’s trade agenda in the coming days and weeks.

I have to believe that state labor organizations and advocates are paying attention. While Cardin isn’t on the ballot until 2018, he will be 75 years old that year, and will have been in elected office for 52 years, since his election to the House of Delegates at age 23. Still very popular, there has long been speculation – way way before I started this perpetual rumor mill – that Cardin might not run for a third term. He’s not exactly endearing himself to labor recently, a key constituency in any Maryland statewide race. And he has a relatively paltry amount of cash on hand for an incumbent senator (approximately $690,000), which should only increase the speculation.

I know, just what we need – we’re still gearing up 2016, and here I am throwing gasoline on the fire for 2018. But hey, I live to serve. My Father’s Day public service announcement.

NOTE: I’m traveling today so I didn’t have the time to put the links in for this article – rest assured that I found and reviewed them. But if you have any questions about the particular votes or other data I’ve cited, I will put up a revised version in the next several days, and in the meantime feel free to ask me for any particular cites.

GOP In Disarray On Trade

For several days, the dominant storyline on the trade bill was “Democrats are in disarray.” Which didn’t rally make sense because the GOP caucus was just as divided as the Dems. But the longstanding narrative that “it’s always good news for Republicans” is alive and well, clearly.

Today, however, John Boehner unleashed a giant shit fit on the Republican House caucus over the 34 Republicans who voted “no” on the rule for the trade bill, calling their behavior “nonsense.” Three conservatives were removed from the Republican whip team.

The Hill has the details:

Displaying a rare flash of anger, Speaker John Boehner (R-Ohio) on Tuesday chastised the nearly three dozen Republicans who voted against a procedural rule that structured how a critical trade package was brought to the House floor.

“I made it pretty clear to the members today I was not very happy about it,” Boehner told reporters after a closed-door meeting with rank-and-file members at the Capitol Hill Club. “You know, we’re a team. And we’ve worked hard to get the majority; we’ve worked hard to stay in the majority.

“And I expect our team to act like a team, and frankly, I made it pretty clear I wasn’t very happy,” he added.

In the meeting, Boehner told his fellow Republicans it was “nonsense” that some of them had voted against leadership, according to a GOP lawmaker in the room.

Maybe Boehner can ask Gerry Connolly and John Delaney for advice on how to build party unity. They seem to be so adept at it.

I amuse myself endlessly.

Good to see Republican blood being spilled on this issue. And even better to see Democrats standing firm on fundamental meat and potatoes economic policy for a change. 

Trade Deal Prospects Dim

The Post has a good story today on what’s left of the wreckage from Friday’s defeat of a key provision of the proposed Trans Pacific Partnership agreement.

After successful Democratic efforts to block the president’s trade package, Obama and House Speaker John A. Boehner (R-Ohio) spoke by phone and consulted their respective top lieutenants as they tried to find a path to success, according to senior aides. Their first call was to abandon plans for a second vote Tuesday on a piece of legislation that must also pass for the entire package to advance to Obama’s desk. Given the grim outcome for Obama of the first vote on Friday — 302 against and 126 in favor — they stood no chance for turning nearly 100 votes in four days.

Instead, Boehner decided to impose a temporary rule that, if approved Tuesday, will allow him until July 30 to bring up the trade debate at any time for a do-over of the stalled companion legislation to the trade package. If successful, Boehner will have bought an additional six weeks to find a way out of the mess.

But what’s the “way out of the mess”? Hint: there really isn’t one.

Even pro-trade Democrats grew grim when discussing what options were available to them in the short term. “I am not aware of any emerging strategy that could turn this around,” said Rep. Gerald E. Connolly (Va.), one of 28 Democrats who voted for the trade promotion piece of the package that narrowly passed Friday.

Another indication of the president’s dire situation came in a 48-hour span in which he was abandoned by two of the most powerful figures in the Democratic Party: House Minority Leader Nancy Pelosi (Calif.) and Hillary Rodham Clinton.

First, Pelosi threw in her lot with a rank-and-file rebellion against Obama’s trade initiatives on Friday, backing Democrats who blocked the legislative package that otherwise had bipartisan support to advance. Then on Sunday afternoon, Clinton used her high-profile status as the front-runner for her party’s presidential nomination to distance herself from the president on trade.

The moves left Obama without any prominent Democratic allies on Capitol Hill or running for the party’s 2016 presidential nomination promoting the 12-nation deal.

No one is declaring the trade agenda dead, but as long as Clinton and Pelosi — two of the most influential voices with the party’s base — decline to help the president secure the votes, its prospects are pretty dim.

Part of the reason for the bill’s failure was the “rule” adopted by Republican Speaker John Boehner, who split off fast track authority (TPA) from worker assistance (TAA) for separate votes. The theory was that Republicans would carry the ball on TPA while Democrats would provide the bulk of votes on TAA. That didn’t happen, of course – 126 Democrats voted “no” on TAA, as a means of spiking the entire bill.

This has angered some of the pro-trade Democrats, who just can’t understand why Democrats would vote against worker assistance. This feigned bewilderment is annoying – we saw it from John Delaney on Friday.

But today, Virginia congressman Gerry Connolly, another of the 28 Democrats who supported fast track authority, takes the anger many steps over the line. He pretty much indicated that he’s with any tactic Boehner might adopt on the trade deal, come hell or high water – even to the point of supporting fast track authority without any worker assistance at all.

Boehner could try to redraft the debate’s rules and turn it into a single vote, as the Senate did last month, but advisers said such a move might spark a conservative revolt and upend the carefully crafted coalition — the TPA (fast-track) portion of the vote passed Friday by just a handful of votes.

Connolly said he would support Boehner if he tried to pass trade authority without the worker program and send it back to the Senate, laying blame at the hands of liberal Democrats if that meant that the worker retraining funds dried up. “I will not hold TPA hostage to that tactic. That’s their tactic, not mine,” he said.

Connolly makes John Delaney look like a labor stalwart by comparison. Wow. 

Gee, Congressman, maybe you should try working with your own party to craft a deal before selling out completely and trashing the base of your party? Note to self – when this guy asks for help in a tough reelect somewhere down the road, remind him of this conversation before hanging up. Loyalty runs both ways, dude.

Trade Bill Vote

In a stinging rebuke to President Obama’s broad trade proposal, the House today rejected a key provision of the Trans Pacific Partnership bill, by a resounding 302-126 vote.

The pivotal vote came on a portion of the legislation to renew federal aid for workers who lose their jobs through imports.

That is normally a Democratic priority, but in this case, rank and file party members saw its defeat as a way to scuttle the entire legislation. As a result, only 40 Democrats voted for it, and 144 were opposed. Republicans broke 158-86 against it.

Fast track authority, another controversial proposal, narrowly prevailed in a separate vote.

A second roll call followed on the trade negotiating powers themselves, and the House approved that measure, 219-211. But under the rules in effect, the overall legislation, previously approved by the Senate, could not advance to the White House unless both halves were agreed to.

The bill will be back Tuesday for another vote. The Senate version also failed a preliminary vote before its ultimate approval. But there’s a big hill to climb.

TPA Passes Senate Hurdle

The Senate voted today, 62-38, to end debate on a bill giving President Obama Trade Promotion Authority (TPA), which would allow him to negotiate trade deals and submit them to Congress for an up or down vote, no amendments and no filibusters in the Senate. This “fast track” authority is considered necessary in order to complete the pending negotiations on the Trans Pacific Partnership (TPP), a free trade agreement between the United States and 12 Pacific Rim countries.

Free trade agreements going back to NAFTA in the mid-1990s have been a disaster for both labor and environmental groups. No evidence has ever been produced to demonstrate that these trade deals are beneficial. Yet, 13 Democratic senators, under pressure from a Democratic president, gave way and voted to break the filibuster last week and today again voted with Republicans to end debate on the bill. Neither Maryland senator voted for the bill, but both Virginia senators did. Another reason to stay on this side of the Potomac.

As an advocate for labor and environmental issues, I find President Obama’s push for TPP/TPA appalling, his reliance on Republican support revolting, and the votes of the 13 Democratic senators to be craven and weak. The visual accompanying the Lawyers, Guns and Money blog post is appropriate, so I’ll use the same one. When will Democrats stop playing the role of Charlie Brown?